On Motion for Rehearing.
[7] Appellant earnestly insists that plaintiff’s petition contained no allegation that Young fraudulently concealed the fact that he was jointly interested with Pratt in the trade made with Barcroft, and that, in the absence of such an allegation, the plea of limitation of two years could not be made to begin at the time Barcroft discovered that Young and Pratt were jointly interested in the transaction. The fraud practiced upon Barcroft consisted of misrepresentations that the note was secured by a valid and subsisting lien on the land. Those misrepresentations induced Barcroft to make the trade and necessarily constituted his cause of action. The concealment of Young’s joint interest with Pratt in the transaction was not the particular fraud relied on for a recovery, but it was so intimately connected with it as to form a part and parcel thereof. Plaintiff alleged in his petition, as a part of the fraudulent transaction, that Young and Pratt received jointly the consideration paid for the note, and Young in his verified answer thereto specially denied that he received any part of such consideration, and specially denied:
“That he made any representations that were false or fraudulent, or that he was a party to or in any manner connected with J. E. Pratt in making this or any false representations whatever, and never at any time intended to defraud the plaintiff in any manner.”
It further appears that the testimony of Barcroft that he did not discover that Young was interested with Pratt in the trade until *395the fall of 1011 was introduced without objection on tlie part of Young, and his testimony that he did not discover Young’s interest in the transaction until after the consummation of the trade was several times repeated without objection. Young also testified by deposition as follows:
“I represented Mr. Bareroft in the sale of the land to Pratt, and it was thoroughly understood between Mr. Bareroft, Mr. Pratt, and myself that I was to deed the lots direct to Mr. Bar-croft and that Mr. Pratt was to deed me one-half of the land, though I bought the land from Mr. Pratt.”
[8] This deposition was introduced by plaintiff without objection on the part of Young. The evidence shows without controversy that, during the latter part of the year 1910, Barcroft’s attorney informed him that in his opinion the note was a bogus transaction, and that there was something wrong with the title to the land. This information was sufficient to put Bareroft upon inquiry to discover the fact that Jobe never owned any title to the land at the time the note in controversy was executed by Brown to him. It would not necessarily set in operation the statute of limitation at that time, as limitation would begin to run only from the date when Bareroft should, by the exercise of ordinary care and with the information noted, have discovered such lack of title in Jobe. Upon the trial he proved such lack of title by the testimony of the county clerk that there was no record of any such title in Jobe and by the witness Pranglin of peaceable possession by other parties than Jobe for more than 30 years. Of course such proof did not necessarily show that Jobe did not hold an unrecorded deed, but during the pendency of the suit plaintiff attempted to take the deposition of Jobe, who, upon being notified by the notary to appear and answer the interrogatories, requested' a few days’ delay to enable him to make a trip to another county, but afterwards wholly failed to appear and answer the interrogatories. Furthermore, the evidence shows that, after receiving the information from his attorney, noted above, he wrote to Young relative thereto, requesting that he take the matter up with Pratt, but. failed to get any information in answer to such inquiry. And Young, who once owned the note, testified on the trial as follows:
“I have never heard from any source except Mr. Bareroft that Jud Brown, Jobe, myself, and Pratt never owned any land in Frio county.”
Under all the facts and circumstances in evidence, we are unable to conclude, as contended by appellant, that the evidence showed without controversy that Bareroft was chargeable with full knowledge that the purported lien stipulated in the note was a fraud more than two years prior to the filing of the suit, and for that reason, in addition to the reasons noted in the original opinion, we are unable to say that the action of the trial court in refusing to sustain the plea of limitation was erroneous.
The motion is overruled.
SPEER, J., not sitting.